Off the Grid – Do You Know Where Your Employees Are?

First Fridays With Finn and Judith October 4, 2013

Guest Presenter: Stephanie Seay Kelly

Bonus Question

It’s Monday afternoon and Carla, who is pregnant, just called from the hospital to tell you she wouldn’t be at work today because job stress has caused pregnancy-related complications. She also told you she might have to be absent from work for the rest of the week, possibly longer.

Bonus Question

What laws and policies are implicated? A) Family and Medical Leave B) Medical/Disability Leave C) Workers’ Compensation Leave D) Leave as a reasonable accommodation for a

disability

Recent Attention to Employee Disability and Medical Issues

• Recent legislative changes (FMLA, ADA, state laws)

• Recent activity by the DOL and

the EEOC

• EEOC FY 2011 Statistics – 32% increase in disability

related charges (more than ¼ of all charges received)

– 53% increase in monetary recovery by the EEOC

– Most popular impairments

Disability – 60% Increase! EEOC Filings Are On The Rise

Navigating the Maze: FMLA and ADA Reminders

• Family and Medical Leave Act (FMLA) – Unpaid, job-protected leave and

benefits – Eligibility requirements and rules – No pushback allowed

• Americans with Disabilities Act

(ADAAA) – Nondiscrimination – Accommodation – Takes effect day 1 – Benefits obligations are different – Accommodation for employee’s

disability only

The FMLA/ADA Checklist of Questions and Issues

• Q: Is the employee eligible for time off of work?

• Q: How much leave does the employee get, and in what form?

• Q: Is the leave paid or unpaid? • Q: What happens to the employee’s

benefits? • Q: Do we have to hold his/her job?

For how long? • Q: Do we have to offer light duty? • Q: What if he/she comes back with

restrictions? • Q: What happens when he/she runs

out of FMLA leave (or never qualified for it in the first place)?

Answer: There is No Safe Zone Outside the FMLA

The EEOC has long maintained—and is now aggressively enforcing—that you may have leave obligations to your employees regardless of whether you or any of your employees is covered by/eligible for FMLA, and regardless of what your policies say.

Why? Because Medical Leave—a Little or a Lot—May Be A REASONABLE

ACCOMMODATION

• Inflexible leave policies—neutral absence control, no-fault type policies ILLEGAL under the ADA

• Restrictive light duty policies could also create problems

• Attendance policies are now on the EEOC’s radar

More Common and Costly Pitfalls in the FMLA/ADA Context

• Waiting for magic words • “we don’t do that here” • “that’s our policy” • “only with a full release” • “you can’t do this job” • “we aren’t terminating you, we’re filing

your job” • Prescription drug issues • Not talking to the employee • Confidentiality issues/need-to-know

Practical Suggestions for the FMLA/ADA Overlap • Update your policies to include

flexible, cross-referencing language • Communicate with employees

before, during and after medical leaves of absence

• Request medical documentation and any other application paperwork consistently

• Be sure to follow all confidentiality, collection and storage protocols

Practical Suggestions for the FMLA/ADA Overlap (continued)

• No single person should make accommodation/employment decisions in a vacuum—consider a centralized decision process

• Communicate with employees at the end of their leaves and consult with HR/legal before making ANY final decisions

• Make sure your first-line supervisors and managers know about these policies

Leave May Be Reasonable, But Remember...

• Other types of accommodations might also solve the problem (non-FMLA only):

– Modified/flexible schedules; – Equipment, devices, and ergonomic adjustments;

and/or – Temporary modification of job duties.

• Extended leave may be a reasonable

accommodation, but ETERNAL leave is not

• Termination may be an option when employees do not participate in the process, or have no reasonable likelihood of return to work

Leave Issues and Workers’ Compensation Laws/Programs

• Concurrent leave • Time spent on workers’

compensation leave counts toward the 12 months of service

• Light duty issues • Overlapping medical

information

Leaves

• Mandatory leaves – Federal law – State law

• Discretionary Leaves – Proper documentation – Consistent administration

Benefits During Leaves

• Who must be given benefits during a leave?

• Options for payment of benefits during a leave

• Pitfalls: – Insured plans – Stop-loss carriers

Bonus Question – Answer

What laws and policies are implicated? A) Family and Medical Leave B) Medical/Disability Leave C) Workers’ Compensation Leave D) Leave as a reasonable accommodation for a

disability; Or E) ALL OF THE ABOVE?